Enforcement Of Penalties Weak In Grain Bin Deaths

This is MORNING EDITION from NPR News. Good morning, I'm David Greene.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne.

We're exploring this week a persistent death toll in an unexpected place. Nearly 500 farmers and farm workers have suffocated in grain storage bins over the last 40 years.

GREENE: 2010 was the worst year on record with 26 deaths. Now, hefty fines and criminal charges are possible for negligent employers. But NPR and our reporting partner, the Center for Public Integrity, found that enforcement is weak, even as workers continue to die.

MONTAGNE: NPR's Howard Berkes has our report.

HOWARD BERKES, BYLINE: Twenty years ago, 19-year-old Patrick Hayes was sent into a Florida grain bin, untrained, unprotected and ill-equipped.

RON HAYES: October the 22nd, 1993, 9:00 a.m. in the morning. They sent Pat in a bin with a shovel to knock down the corn that was stuck to the wall.

BERKES: Ron Hayes remembers every awful detail about his son's final moments. The corrugated steel storage bin was six stories high and half full of corn. Beneath the kernels, a gigantic and spinning screw-shaped auger created a quicksand flow.

HAYES: And then that started pulling him down. And as it was pulling him down, the rest of the wall of corn fell on top of him.

(SOUNDBITE OF GRAIN BIN)

BERKES: Hayes has video showing corn pouring out a side hatch as rescuers with masks and oxygen tanks climb in and out in a desperate search for Patrick.

HAYES: And it was five hours before they got him out of the bin. Eyes, nose, face, ears, mouth was all full of corn dust.

BERKES: That's the enduring image from the morgue. Employer Showell Farms admitted to a roll the dice safety philosophy, according to federal documents. The Occupational Safety and Health Administration issued a $530,000 fine and so-called willful violations. They allege blatant disregard for the law, trigger the highest fines, and can result in criminal charges. But the willful citations were dropped. And the fine plunged more than 90 percent.

HAYES: This is the way it happens. We get cases dropped. We get cases mishandled. We get U.S. attorneys' reluctance to prosecute. And us families are left here to pick up the pieces.

BERKES: An internal OSHA review concluded that the agency mishandled Patrick Hayes' case. His father Ron then shamed OSHA into outlawing walking down grain, the practice of sending workers into bins to unclog them. But in the two decades since, the same safety standards were violated over and over again and dozens of workers died.

OSHA chief David Michaels says the agency is trying.

DAVID MICHAELS: OSHA has issued a large number of fines in excess of $100,000. We've had a criminal prosecution where the company pled guilty.

BERKES: That rare criminal prosecution also involved one of OSHA's biggest fines ever. In 2009, Tempel Grain in Colorado sent 17-year-old Cody Rigsby into dangerous conditions in a grain bin. He was underage, untrained and ill-equipped. OSHA's fine was $1.6 million. A plea agreement put the company on probation and gave the family a half million dollars in restitution. The fine sank 97 percent.

Ron Hayes.

HAYES: I mean they had the perfect opportunity to send a clear message to the grain facilities that we will not stand by and let you continue to kill our workers. How can our OSHA agency let this continue to happen?

BERKES: Hayes met with OSHA's David Michaels and told him violations and deaths would persist as long as the agency slashes major fines and employers don't go to jail for willful and egregious behavior.

Here's Michaels.

MICHAELS: I absolutely agree with Ron that higher fines and criminal prosecutions would enhance our effectiveness and help prevent injuries and fatalities. But right now OSHA isn't able to do that because the law limits us. And we'd love to see that changed.

BERKES: Employers have the right to challenge and negotiate citations and fines. And OSHA routinely relents. Those major fines - over a hundred grand - they dropped 80 percent of the time, according to an analysis of OSHA enforcement by NPR and the Center for Public Integrity. The agency discount ranged from 40 to 97 percent.

In all the grain deaths we identified, OSHA fines were cut on average more than half. This, Michaels suggests, is part of the process.

MICHAELS: We do everything we can within the current regulatory framework. We look at the individual characteristics of the case, the characteristics of the employer. We don't think reducing a fine to, you know, $700,000 or $500,000 or $200,000 is going easy on this industry.

BERKES: But given the persistent death toll, it doesn't seem fines are providing the deterrent effect they're supposed to. As for criminal prosecutions...

UNIDENTIFIED MAN: We don't have criminal prosecution powers.

BERKES: But OSHA policy is to consider sending willful citations to the Justice Department. Those are the violations involving plain indifference to the law. Our review found that OSHA downgraded or dropped willful citations almost half the time. Since 2001, the agency had 19 failed grain incidents that were eligible for criminal prosecution.

Eight were sent to U.S. attorneys, three through criminal charges, which doesn't surprise Jane Barrett, a former federal prosecutor now at the University of Maryland College of Law.

JANE BARRETT: Penalties under the OSHA statute are so light compared to the gravity of the offense. They're misdemeanors. They're six month misdemeanors.

BERKES: Which don't attract U.S. attorneys with felony cases with more serious jail time like environmental crimes.

BARRETT: Sending a 14-year-old in to a grain bin without proper safety equipment, that should be as unacceptable as discharging a pollutant into a waterway that kills fish.

BERKES: That 14-year-old was Wyatt Whitebread, also underage, untrained and ill-equipped when he was sent into a grain bin in Mount Carroll, Illinois, just a year after Temple Grain. He and 19-year-old Alex Pacas drowned in corn. The fine for bin owner Haasbach LLC was $550,000, until it was cut more than 60 percent. OSHA sent the case to Gary Shapiro, the acting U.S. attorney, but he balked at criminal charges and he declined to talk about it.

Local charges also seem warranted to law Professor Steve Beckett of the University of Illinois.

STEVE BECKETT: There's a deterrence factor that is needed and the parallel proceedings of OSHA or civil lawsuits isn't doing the trick. My experience has been the way you get people's attention is to prosecute them criminally.

BERKES: Beckett says involuntary manslaughter fits the Mount Carroll case, but local prosecutor Scott Brinkmeier indicated lack of interest, according to federal records. He also declined to talk. Bill Field of Purdue University has tracked hundreds of grain deaths in the last four decades, in many cases, he says...

BILL FIELD: It wasn't just, you know, someone making a mistake. It was someone putting people in harm's way mostly for economic gain.

BERKES: OSHA's David Michaels says his agency is doing what it can to respond to persistent violations and deaths.

MICHAELS: We do repeat visits to the worst companies and we do enhanced consultation and training and assistance to companies that want to do the right thing. We are getting the message out in a way that, I think, really is changing behavior in that industry.

BERKES: Michaels sees success in a sharp drop in incidents since 2010, the record year for grain deaths. The harvests then were huge and wet. Bins clogged so workers were sent in to walk down the grain. Harvests since then have been smaller and dryer, which may also account for fewer incidents. Activist Ron Hayes worries about the next big and wet year.

HAYES: When they're cleaning out a grain bin, they got to get it done because they got a new pile of grain coming in. They leave their auger on. They throw a kid in there with a shovel or a pick and say knock that corn down, we got to have it out by dark. And the people that's sending that kid in there knows there's no prosecution, their fine will be reduced, and he's gonna get killed.

BERKES: Hayes is pessimistic because he's seen the same behavior year after year since his son Patrick lost his life in 1993. Howard Berkes, NPR News.

GREENE: Now, some grain companies are trying to do the right thing. You can hear Howard going into a grain bin with one of those companies later today on ALL THINGS CONSIDERED. And you can learn more about grain incidents in your state at NPR.org. This is MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.